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Disclosure rules within public procurement procedures and during contract

performance. Transparency study case of Poland and Romania

PhD Candidate Laura Farca*


Prof. dr. Dacian C. Dragoş
Center for Good Governance Studies
Babes-Bolyai University Cluj-Napoca
Dr. Piotr Bogdanowicz*
Warsaw University

Abstract:
The aim of this study is to look at the specifics of Romania and Poland in addressing the
manner in which contracting authorities implement the transparency principle in public
procurement procedures. Generally, the practical applicability of this principle arises during
both the public procurement award procedures and the contract performance. However, in
both countries there is a current tendency to increase the level of transparency by regulating
„grey areas” starting from the debarment of economic operators that fail to implement anti-
corruption policies (Poland) or debarment of the companies with bearer shares (Romania).
Unfortunately, the process of regulating this kind of cases seems to be demanding and lengthy
with rather little prospects of having them fully covered in the near future due to the political
context. Yet, implementation of such cases can be in some cases doubtful due to lack of
accountability, poor administrative capacity or overregulation on formal issues rather than
on substantial ones.
Furthermore, there is an ongoing debate about the public register of public procurement
contracts and the conflict between the need of the economic operators to protect confidential
information relating to business secrets on one hand and the need to disclose information of
public interest relating to award procedures. Yet, disclosure rules seem to slightly vary from
one country to another. As a common feature, in practice the level of disclosure during the
performance of public procurement contract seems to be quite limited in both countries.

*
Corresponding author: Laura Farca is an attorney-at-law in Bucharest Bar and a PhD candidate at Babes-Bolyai
University, Cluj-Napoca, Romania. E-mail: laura.farca@farcalaw.ro

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Key words: transparency principle, ground of exclusion, debarment, bearing shares,
protection of business secrets, contract modification, access to remedies.

1. Introduction
Public procurement represents around 19 % of EU GDP, with over EUR 2.3 trillion being
spent each year by public authorities and utilities1. For this reason, the EU adopted a new
procurement framework to make the public procurement more efficient. Furthermore, the new
regulations aim at fulfilling the principle transparency and competition to the benefit of both
the public purchasers and economic operators. Yet, its implementation varies from country to
country.
Broadly speaking, the European legal framework for public procurement includes the
principles deriving from the Treaty on the Functioning of the European Union (TFEU) such as
equal treatment, non-discrimination, mutual recognition, proportionality and transparency. In
particular, the EU adopted three public procurement Directives: (i) the Directive 2014/24/EU
on public procurement2, (ii) Directive 2014/25/EU on procurement by entities operating in the
water, energy, transport and postal services sectors3 and (iii) Directive 2014/23/EU on the
award of the concession contracts4 on the other side. Interestingly, all three directives outline
the transparency principle starting from the first paragraphs.
So why and to whom is transparency in public procurement relevant? Firstly, for general
public5 transparency should ensure visibility of the public funds flow with the purpose of
eliminating favoritism and allowing for effective accountability. Equally important, it can
enhance public trust6 in the government. Secondly, for the economic operators involved in a
certain tender, transparency can facilitate access to legal remedies.

1
For details see: the Communication from the European Commission COM (2015) 550 final “Upgrading the
Single Market: more opportunities for people and business” available here:
https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-550-EN-F1-1.PDF (Last accessed on 10 July
2018).
2
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public
procurement and repealing Directive 2004/18/EC is available here: https://eur-lex.europa.eu/legal-
content/en/TXT/?uri=CELEX:32014L0024 (Last accessed on 10 July 2018).
3
Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal service
sector is available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32014L0025 (Last accessed
on 10 July 2018).
4
Directive 2014/23/EU on the award of the concession contracts is available here: https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AJOL_2014_094_R_0001_01 (Last accessed on 10 July 2018).
5
See Abby Semple, “A practical guide to public procurement”, Oxford University Press, Oxford, 2015, p. 56.
6
Petr Bouda, Martin Fadrný, Michala Chatrná Contributing Authors: Bartosz Kwiatkowski, Mária Žuffová
“Sheeding light on Public Contracts. The Register of Contracts in public spending overshight ”

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However, from the perspective of transparency principle a key challenge is the lack of
available data and analytical tools that would allow problems or irregularities to be prevented
or detected7 (e.g. public contract register). This could result in an improper functioning of the
authorities of the member states implementing the EU budget in particular in the context of
public procurement.
Finally, yet importantly, a generalized deficiency as regards the rule of law8 in countries
like Poland and Romania9 could also affect the proper functioning of all the entities involved
in public procurement areas.
Unfortunately, both countries are currently facing issues related to rule of law due mainly
to political reasons. Interestingly, the European Commission has underlined that when the rule
of law is put into question the functioning of the internal market is put in question too 10.
Public procurement is an important part of the European Union’s internal market including
Romania and Poland. Therefore, any interference affecting internal market could also affect
the public procurement spending.
In the past years, Romania has gone quite far away from the rule of law due to political
decisions affecting the independence of the judiciary system. The biggest problem for the rule
of law in Romania is that the Parliament refuses to comply with decisions issued by the
bodies responsible for conflict of interest11. In Poland12 the situation seems to be even worse
since this EU country now face the risk of article 7 (1) of the EU Treaty due to a serious
breach of EU values13.Basically, both countries fight to defend judicial independence.

https://www.rekonstrukcestatu.cz/shedding-light-on-public-contracts--the-register-of-contracts-in-public-
spending-oversight.pdf (Last accessed on 15 July 2018).
7
See “Upgrading the Single Market: more opportunities for people and business” available here:
https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-550-EN-F1-1.PDF
8
See the European Commission Proposal for a Regulation of the European Parliament and of the Council on the
protection of the Union’s budget in case of generalised deficiencies as regard the rule of law in the Member
States COM(2018) 324 final of 2.05.2018
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A324%3AFIN (Last accessed on 10
July 2018).
9
See “Spectre of corruption heightens EU fears over rule of law in Romania” in Financial Times:
https://www.ft.com/content/be0deed2-a065-11e8-85da-eeb7a9ce36e4 (Last accessed on 16 august 2018).
10
See European Commission – Press release, Rule of Law: “European Commission acts to defend judicial
independence in Poland Brussels”, 20 December 2017, http://europa.eu/rapid/press-release_IP-17-5367_en.htm
(Last accessed on 25 July 2018).
11
See for details: http://www.euinside.eu/en/analyses/first-eu-council-presidency-without-rule-of-law-cvm-
bulgaria (Last accessed on 25 July 2018).
12
See for details: https://multimedia.europarl.europa.eu/en/rule-of-law-in-poland_1901_pk (Last accessed on 25
July 2018).
13
See http://europa.eu/rapid/press-release_IP-17-5367_en.htm (Last accessed on 24 July 2018).

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In this political context, this article aims to analyses if these turbulences also reflect in
recent amendments in public procurement law and ultimately hamper transparency in public
procurement in both countries.

2. The specifics of transparency principle in public procurement

2.1 General framework for the regulation of transparency in public procurement in


Romania and Poland

Under the Romanian public procurement law, the second article par. 2 d) of Law
98/201614 on public procurement (“RPPL”) lists the transparency principle among other
principles that govern the award procedures: non-discrimination, equal treatment, mutual
recognition, proportionality and accountability principle. A clear understanding of these
principles is of utmost importance since any unregulated situation by the public procurement
regulations shall be dealt with from the perspective of any of these principles.
Thus, article 1 of the Government Decision no. 395/2016 for the approval of the
secondary norms of the provisions pertaining to the award of public procurement
contract/framework agreement of the RPPL15 (“Methodological norms”) expressly regulates
the priority of these principles. Specifically, this article provides following: “During the
public procurement awards, any situation that not is expressly regulated shall be interpreted
through the principles set at article 2 par. 2 of the Law 98/2016 on public procurement. ”
However, there is no definition of transparency principle in RPPL. This shortfall is
partially covered by guidance in practical issues offered by the Romanian National Agency
for Public Procurement (“RNAPP”) throughout a project called “Biblioteca de speţe” or
“Library of cases” with the purpose of offering support to all the entities involved in public
procurement procedures but mainly to the contracting authorities16.
Moreover, the Operational manual on the award of public procurement contracts
issued in 2009 by RNAPP under the former Romanian public procurement law provided a
definition of the transparency principle as a general guidance with no legal enforceability.

14
Law 98/2016 has been published in the Official Gazette no. 390 as of 23 May 2016.
15
Government Decision no. 395/2016 for the approval of the Methodological Norms for the application of the
provisions concerning the award of public procurement contracts/ framework agreements as contained in Law
98/2016 on public procurement has been published in the Official Gazette no. 423 as of June 6, 2016.
16
For a brief presentation on the current reformation of the Romanian public procurement system see Ioan
Baciu, “The reformation of the Romanian Public Procurement System-A never ending story” published in EPPL
– European Procurement & Public Private Partnership no. 1/2018, Legal Publisher Lexxion.

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Thus, this Manual defined transparency principle as follows: “Transparency means informing
the public of all the information involving an award procedure”.
In case of ESI funds, the Order no. 1284/2016 on approving the competitive procedure
applicable to private applicants/recipients for awarding the contracts of supply, services or
works financed under the European funds17 includes some clarifications on the transparency
principle. In this particular enactment, a definition of transparency principle states the
following: “transparency means providing the information pertaining to a competitive
procedure allowing the economic operators operating on the market to compete, thus
fostering competition.” From a practical perspective this entails publishing a notice on a
dedicated website18.
From a broader perspective, it is also relevant to mention that Romania has signed the
Partnership Agreement with the European Union regarding the EU funds programming for
2014-202019. This document has tackled the current shortcomings in the Romanian public
procurement system including some relevant issues for the transparency principle20. For
example, the document describes the Romanian procurement system as an “opaque public
procurement system21.”
Moreover, based on this document, RNAP has issued the National Strategy on Public
Procurement22 (“Strategy”) based on the technical input provided by the core group together
with EC services having clear set of objectives including a higher degree of transparency in
public procurement. This strategy also defines transparency as follows: “Transparency means
providing all the information regarding an award of a supply, services or works.”
Nevertheless, some Romanian scholars have criticized the absence of a definition of
transparency principle in public procurement23. Mentioned should be made that the EU Commented [c1]: Is there a similar opinion in Poland requiring
a definition of transparency principle_
directive on public procurement has not included such definition.

17
Published in the Official Gazzette no. 618 as of 12 August 2016.
18
See for details https://www.fonduri-ue.ro/despre (Last accessed on 15 August 2018).
19
The Partnership Agreement România under no. 2014RO16M8PA001.1.2 is available here:
http://www.fonduri-ue.ro/files/documente-relevante/acord/Acord_de_Parteneriat_2014-2020_EN.pdf (Last
accessed on 28 July 2018).
20
See for example p. 34 of the Progress report on the implementation of the Partnership Agreement Romania for
2014-2020 available here (Romanian version only). http://www.fonduri-ue.ro/acord-parteneriat#varianta-
%C3%AEn-englez%C4%83 (Last accessed on 15 August 2018).
21
See for details point 778 from the Partnership Agreement Romania for 2014-2020.
22
Approved by the Government Decision no. 901/2015 published in the Official Gazette no. 881 as of
November 25, 2015.
23
See for details D.-D.l Șerban „Commented case-law in public procurement. vol.II.”, Wolters Kluwer,
Bucharest, 2009, p.288.
23
See for details the recent guide issued by European Commission, “Public procurement guidance for
practitioners on avoiding the most common errors in projects funded by the European Structural and
Investments Funds”, pp. 20-22 [Online] at:

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Although legal certainty is needed, such definition could be easily regarded as rigid
triggering the risk of loopholes to be easily exploited or misinterpreted. Therefore, we can
conclude that such definition is not required since an interpretation can be made based on: (i)
relevant EU and Romanian legislation, (ii) relevant EU and Romanian case law and (iii) EU
and Romanian guides24, recommendations or strategies.
Transparency in Poland is regulated at three levels: the Constitution of the Republic of
Poland dated 2 April 199725 (the "Polish Constitution"), the Act on Access to Public
Information dated 6 September 200126 (the "Public Information Act") which sets the general
statutory rules in relation to access to public information (including documents), and specific
statutory acts such as, for instance, the Act on Public Procurement Law dated 29 January
200427 (the "PPL").
It is worth noting that the debate around the transparency-related issues is now vibrant
in Poland. It has certainly been fuelled by the draft act on transparency of public life issued in
by the Polish government October and, among other things, set to repeal the Public
Information Act.28 According to its official justifications, the draft is to increase transparency
in Poland. However, it has been criticized by, among other things, the Polish ombudsman who
called the proposed law unconstitutional due to the draft's breach of the proportionality
principle.29 Interestingly, the draft touches also upon public procurement. Among the many Commented [c2]: Can you elaborate how it would breach the
proportionality principle
provisions of the PPL that are to change following the entry into force of the act, two deserve
special attention.
Firstly, a new ground for exclusion from public procurement is to be introduced: it
pertains to medium-sized or larger economic operators that did not adopt or apply internal
anticorruption procedures and were ultimately punished by penalty for doing so. 30 Such

http://ec.europa.eu/regional_policy/en/information/publications/guidelines/2018/public-procurement-guidance-
for-practitioners-2018 (accessed on 29 July 2018).

25
Journal of Laws of 1997, no. 78, item 483, as amended.
26
Journal of Laws of 2016, item 1764.
27
Journal of Laws of 2016, item 1020, as amended.
28
The newest draft can be found at (Polish language version only):
http://legislacja.rcl.gov.pl/docs//2/12304351/12465433/12465434/dokument324982.pdf (access: 17.2.2018).
29
Opinion of the ombudsman can be found here (Polish language version only):
https://www.rpo.gov.pl/pl/content/opinia-rpo-w-sprawie-projektu-ustawy-o-jawnosci-zycia-publicznego (access:
17.2.2018).
30
See Article 112 point 4 of the draft act on transparency of public life.

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economic operators will be barred from participating in public procurement proceedings for 5
years. Commented [c3]: When the contracting authority will verify if
the bidder has implemented this kind of policy! Is there a
Secondly, and even more importantly given the subject of this contribution, a publicly conformity time limit or the debarment occurs de plano_

available registry of public contracts31 is to be created and maintained by contracting Commented [c4]: I have found this document mentioning
Poland as having a public contract
authorities. The information kept in the registry would include any and all modifications to registryŞhttp://ec.europa.eu/regional_policy/sources/good_practic
es/GP_fiche_23.pdf. Is this correct or it is another registry_
public contracts.
In the following sections, we will examine the role of transparency principle in
different stages of the award procedure, including pre-tender, evaluation and post-tender
stage.

2.2 Ex-ante procurement transparency (pre-tender stage) in Romania and in Poland

Transparency during the planning and preparation of the award procedure. The new
regulations issued in 2016 have regulated the annual strategy for public procurement, as a Commented [c5]: For the purpose of this article, can you please
clarify if in Poland a contracting authority prepares an annual
document for planning all public procurement involving products, works and services. strategy_

Basically, any contracting authority shall draft such a strategy as a planning document. To
reach this purpose, all the contracting authorities have the obligation to draft this strategy in
the last quarter of each year for the following year. This document shall be signed by the
contracting authority’s direct principal as method of increasing the accountability in
Romanian public procurement system. In Poland,
Furthermore, based on this document, contracting authorities shall also draft the public
procurement annual program. By contrast with the strategy, this program is designed as a Commented [c6]: For the purposes of this article, can you
please clarify if in Poland a contracting authority prepares the
managerial instrument used for the planning and monitoring the necessary resources for the procurement annual program_

award procedures implementation as well as for checking the fulfillment of all the objectives
included in local/regional or national development strategy, if the case32. In Poland,
As an application of the transparency principle, all the contracting authorities have the
obligation to quarterly publish in the electronic system for public procurement called SICAP
excerpts from this annual program. This new regulation aims at improving the award
procedure transparency by allowing any third parties to find out in advance the award
procedures to be carried in the following year.

31
With few exceptions, such as contracts concluded under Article 346 of the Treaty on the functioning of the
European Union, that will not have to be placed in the registry.
32
See for details (Romanian version only): http://anap.gov.ro/web/wp-content/uploads/2016/07/Informatii-utile-
modificari-legislative-ANAP.pdf (Last accessed on 15 August 2018). Unfortunately, the website of RNAP does
not have currently an English version.

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In the Strategy, the annual program is supposed to ensure a thorough analysis of the
contracting authority’s performance. Yet, this document has its own limits since it fails to
include also the obligations to publish data regarding the level of the contracts below the
thresholds. Even if such contracts are included in an appendix to this program, a contracting
authority does not have the obligation to publish data regarding public procurement below the
thresholds on-line33.
Market consultation. The market consultation is part of the award procedure’s
preparatory phase, usually seen as a crucial phase of the public procurement award procedure.
Except for some specific provisions referring to the complexity of the field requiring such
consultation and the content of the prior notice, a contracting authority has a wide discretion
regarding the manner in which such consultation should take place. However, a contracting
authority must follow the fundamental principles of non-discrimination and transparency
when carrying out such consultation.
Yet, in practice, from our observations it seems that some Romanian contracting
authorities seem to favor some economic operators. This is so because instead of asking some Commented [c7]: Is there a similar practice in Poland_ Can you
elaborate on how the market consultations take place in Poland_
particular questions on key aspects, some contracting authorities have posted on-line the
entire award documentation. This resulted in substantial modifications of the award
documentation as opposed to a consultation referring to a list of key-issues.
Estimated value of the award procedure. Although RPPL regulates at articles 9-25
some particular rules pertaining to the manner in which contracting authorities determine the
estimated value of an award procedure, the total estimated value published in the notices
remains a mystery for most of the economic operators or stakeholders. In many cases, the
Romanian contracting authorities publish the estimated value without having in view a sound
methodology34. This is why there are many projects where the estimated value is lower than
the real costs, causing in many cases serious blockages. By contract, in many other cases the
estimated value is much higher than the real cost of the contract value on the private market.
In order to eliminate this issue, the Strategy provides that the national authorities will issue
some methodologies for determining the estimated value of the public procurement contracts.
Until now, from our knowledge there are no regulations or guides involving such
methodology. Commented [c8]: Are there any specifics regarding the
estimated value of the award procedure in Poland_

33
See article 12 (6) of the Methodological norms.
34
See p. 67 from the Strategy (no English version is available).

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In Poland, contracting authorities are required to publish an estimate of the cost of the
procurement. Since the estimate of the cost of the procurement is a part of a contract notice,
that estimate is accessible to both interested bidders and third parties.
Notices. The Romanian contracting authority shall ensure transparency in awarding public
procurement contracts and concluding framework agreements by publication of the prior
information notices, participation invitations/contract notices, and awarding notices. In
practice, there is little usage of prior information notices35 due to poor administrative planning
of the award procedures. For example, a simple interrogation of the Romanian electronic
public procurement system indicates that in 2017 the contracting authorities have published
only 377 prior information notices. Likewise, the Strategy underscores the little usage of prior
information notices (VEAT) notices.
A similar situation is in Poland. For instance, in 2016 there were merely 4124 such
notices – out of more than 110,000 notices altogether. This also means that VEAT notices
were published in approximately one out of five contracts awarded in the negotiated
procedure without publication or the single-source procurement (nearly 20,000 of such
contracts were concluded).

In Poland, pursuant to Article 11(1) of the PPL, contract notices:


i. shall be placed in the Public Procurement Bulletin available on the portal of the
Public Procurement Office – for contracts with the value below EU thresholds
but above EUR 30,000;36
ii. shall be published in the Official Journal of the European Union if they are
dispatched to the Publications Office of the European Union – for contracts with
the value equal to or exceeding EU thresholds.37
The standard forms of notices to be placed in the Public Procurement Bulletin, i.e.
contract notices, contract notices in the field of security and defence, contract award notices,
ex ante notices, design contest notices, notices of the results of a contest, modifications of
contract notices, notices of modifications of a contract during its term, are specified in the

35
Prior information notices are regulated at article 48 from the Directive 2014/24/EU on public procurement.
36
Pursuant to the Article 4(8) of the PPL, the PPL applies to public contracts and contests the value of which is
equal to, or higher than, the equivalent of EUR 30,000, i.e. even if such value is much below the EU thresholds.
What is more, the contracting authority may place in the Public Procurement Bulletin the contract notice the
publication of which is not mandatory, due to the contract value (i.e. it is lower that the equivalent of EUR
30,000).
37
However, the contracting authority may submit to the Publications Office of the European Union a notice
whose publication in the Official Journal of the European Union, in view of the amount of the contract, is not
obligatory.

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Ordinance of the Minister of the Development concerning the Standard Forms of Notices to
be Placed in the Public Procurement Bulletin dated 26 July 2016.38
The contracting authority may additionally place a notice in a manner other than that
defined above, in particular, in nationwide press. However, such notice cannot be made prior
to its publication in the Official Journal of the European Union or prior to the passage of 48
hours from the confirmation of receipt of the notice by the Publications Office of the
European Union.
In Poland, all the notices the PPL is referring to, including contract notices/calls for tender,
are either submitted to the Publications Office of the European Union, in accordance with the
forms and procedures for the electronic transmission of notices indicated on the website
referred to in Directive 2014/24/EU, and para. 3 of Annex IX to Directive 2014/25/EU, or are
placed by electronic means of communication with the use of the standard forms available on
the website of the Public Procurement Office (in the case of notices placed in the Public
Procurement Bulletin).
Unfortunately, in both countries there is no "big data" requirement, in terms of allowing for
data mining or other automated data treatment procedures. However, in Romania
In Romania within the participation invitation, a draft of such framework agreement and
subsequent contract shall be available for consultation. However, contracting authorities fail
to publish the signed version of these agreements. This is why several senators have recently
initiated a proposal under no. L214/2018 for amending article 5 of the 544/2001 regarding
FOIA39. According to this proposal, the contracting authorities would have published without
any other formal request (proactive transparency by default) all the public procurement
contracts automatically. This would definitely have improved transparency and perhaps
decreased the costs of the public procurement contracts40.
A similar measure has been adopted recently in countries like Slovakia41, the Czech
Republic and Poland under the form of public contract registry with the aim of keeping track
of all the procurements concluded by a state42.

38
Journal of Law 2016, item 1127.
39
The initiative is available here (No English version is available):
https://senat.ro/legis/PDF/2018/18L214FG.pdf (Last accessed on 4 August 2018).
40
Unfortunately, the Romanian Government has also issued a negative endorsement (No English version is
available): http://www.cdep.ro/proiecte/2018/300/20/9/pvg329_2018.pdf (Last accessed on 15 August 2018).
41
See for the case of Slovakia Petr Bouda, Martin Fadrný, Michala Chatrná whith contributing Authors: Bartosz
Kwiatkowski and Mária Žuffová, “Shedding Light on Public Contracts The Register of Contracts in Public
Spending Oversight” the https://www.rekonstrukcestatu.cz/shedding-light-on-public-contracts--the-register-of-
contracts-in-public-spending-oversight.pdf (Last accessed on 4 August 2018).

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Award documentation. A significant number of Romanian cases have indicated a lack of
transparency involving award documentation. Thus, the most relevant decisions have
underlined mainly the following issues around transparency: providing late access to award
documentation in case of electronic system malfunctions, the lack of clarity concerning
certain criteria relating to technical ability or restrictive specifications included in the award
documentation.
In Poland, as regards draft contracts and other relevant documentation, their disclosure
depends on the type of procedure. Namely, in open and restricted procedures: the contracting
authority is obliged to render available the tender specification (containing draft contracts or,
at least, the provisions of essence to the parties which will be introduced into the concluded
contract or the general terms of the contract) on the website as of the date of publishing the
contract notice in the Official Journal of the European Union (in the case of contracts above
EU thresholds) or as of the date of announcing the contract notice in the Public Procurement
Bulletin (in the case of contracts below EU thresholds).

In procedures other than the open and restricted ones, the contracting authority may render the
tender specification available on its website (Article 37(2) of the PPL). In a negotiated
procedure with publication, competitive dialogue, or innovation partnership to enable the
economic operators to determine the nature and scope of the contract and decide whether to
submit a request to participate in the procedure, the contracting authority shall render
available on a website information and requirements relating to the procedure, including
specifications of the subject-matter of the contract, description of the needs and characteristic
features of the supplies, services, or works constituting the subject-matter of the contract, or
information about the need for an innovative product, service, or work, as of the date of
publishing the contract notice in the Official Journal of the European Union or as of the date
of sending the invitation to confirm interest in the case of contracts the value of which is
equal to or exceeds EU thresholds, or as of the date of announcing the contract notice in the
Public Procurement Bulletin in the case of contracts the value of which is below EU
thresholds.

42
See also http://ec.europa.eu/regional_policy/sources/good_practices/GP_fiche_23.pdf (Last accessed on 4
August 2018).

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The PPL is silent on the charge for access to documents. Before the transposition of
2014/24/EU, there was an explicit provision in the PPL that the access is free of charge. In
practice, the access is still free of charge. In Romania, one the other hand
Under Article 37(6) of the PPL, the contracting authority is not obliged to make a part
of the tender specification available on the website if it imposed on the economic operators
the requirement to protect the confidentiality of the information provided in the contract
award procedure. In such a case, the contracting authority defines, in the tender specification,
measures to protect the confidentiality of the information, and shall specify the manner of
obtaining it. However, we are not aware of any cases of exercising this right by contracting
authorities in practice.
The situation is quite different in the case of contracts in the field of defence and
security where, in order to guarantee the security of classified information, the contracting
authority should determine, in the specification of essential terms of contract or in the contract
notice, all the requirements connected with performance of contract. The contracting authority
may determine, in the description of the subject-matter of contract, several commitments to be
obtained from the economic operator and subcontractor, e.g. to safeguard the confidentiality
of all classified information in their possession or coming to their notice throughout the
duration of the contract and after termination of the contract in the field of defense and
security, in a manner determined in provisions on protection of classified information (Article
131g (1) of the PPL). As far as we are aware, the contracting authorities exercise this right
quite often.
Answers to the clarifications requests. In correlation with the award documentation, a
sensitive issue concerns the manner in which some contracting authority provide the
requested clarifications to the questions raised by the economic operators in a certain tender.
In some particular cases, by the means of the answers provided, contracting authorities in fact
substantially amend the initial award documentation in favor of a certain economic
operators43.
In other cases, the answers were simply very difficult to follow and afterwards comply
with by the economic operators. This shortcoming has been recently eliminated since now
contracting authorities will set one or two deadlines when they will provide all the answers to
the requested clarifications having in view also the deadline set for all the economic operators

43
For details, see p. 71 of the Strategy available here (No English version available):
http://www.anrmap.ro/documents/10180/0/Strategia+Nationala+Achizitii+Publice+final.pdf/84dc3889-a7c7-
48db-907f-fa9a63d9822c (Last accessed on 15 August 2018).

Page 12 of 31
to submit their bids. This measure aims to improve clarity of the award documentation and
thus complies with the transparency principle44.

Transparency of the award criteria. The scoring method or the methodology used in
certain award criteria by some contracting authorities has generated a series of disputes in
Romanian courts or the National Council for Solving Complaints (“Council”). This is due to
discretionary or subjective manner of the chosen factors for the most economically
advantageous tender submitted in that award procedure.
On the contrary, similar to all the conditions and rules for the award procedures, the
transparency principle requires a “degree of clarity in the way the relevant information is
communicated to the tenderers45.
The Romanian courts considered a breach of the transparency principle concerning the
award criteria in the following cases:
 the award criteria consisting of “identifying as many risks as possible” fails to provide
a real and obvious advantage for the contracting authority46,
 the use of subjective factors in the absence of certain elements representing the basic
elements for comparing the quality programs47 submitted by the bidders;
 the use of insufficient detailed algorithm48 allowing a contracting authority to exercise
to much discretion.
To some extent, the National Agency for Public Procurement has tried to partially
mitigate the issue concerning this matter by preparing some general drafts of the award
documentation including some models of award criteria. However, these are not mandatory
and unfortunately not familiar to many contracting authorities.
In Poland, in general, the contracting authorities are not required to disclose the
matrix/calculation method they are to use when evaluating tenders against the MEAT. In fact,
there is no standard methodology or matrix to be used by contracting authorities and, in
particular, in lower-value contracts, contracting authorities rarely structure their evaluations
through the use of a matrix. However, since the cost criterion may be defined with the use of

44
See article 160 (2) of the RPPL.
45
See Sue Arrowsmith, “The Law of Public and Utilities Procurement: Regulation in the EU and UK”, Sweet &
Maxwell, London, 2014, p.789.
46
See the court decision no. 3483 as of July 25, 2012 issued by the Brasov Appeal Court.
47
See the court decision no. 2289 as of November 1, 2010 issued by the Bucharest Court of Appeal.
48
See the court decision no. 2532 as of September 26, 2011 issued by the Craiova Court of Appeal.

Page 13 of 31
the life cycle cost approach, having used this approach to the subject-matter of contract, the
contracting authority provides in the tender specification, among other things, the data and the
method to be used by the contracting authority to determine the life cycle costs on the basis of
these data.
Protecting of business and technical secrets. RPPL explicitly provides at article 57
the duty for the contracting authorities to protect the confidential information provided by the
economic operators in their tenders. To this end, the economic operators have the duty to
mark the documents containing confidential information. However, in some cases, some
economic operators abuse of this right and consequently they declare their entire offer as
being confidential by simply issuing a formal statement. This kind of behavior does not raise
some particular issues during ex-ante procedure. However, during the litigation phase, that we
will discuss below, this kind of behavior bending the public procurement regulations triggers
some important consequences as it can impede access to the offer submitted for instance by
the winning bidder.
Although according to article 123 of the Methodological norms, all the bidders must
state the reasons why their bid is confidential, in fact in many cases the contracting authorities
fail to properly check such reasons due to poor administrative capacity. Furthermore, RPPL
does not include any specific sanctions for the contracting authorities accepting this kind of
bids.
Negociations without a prior publication of a notice. The award procedure called
negotiation without a prior publication of a notice can also be seen as an exception from the
rule that the contracting authority must firstly initiate a procedure thorough out an open or
restricted tender. For instance, in 2017 approx. 14% of the total award procedures have been
negotiations without a prior publication of a notice49. Since it is an exceptional award
procedure, this percentage seems to be quite high.

Although it offers more flexibility to the contracting authorities, this award procedure is an
exception and can be followed in some exceptional cases regulated by article 104 of the
RPPL. This award procedure is an exception that could not foster transparency in public
procurement. This is the reason that there are an important number of court decisions

49
See for details the Annual report regarding the monitoring indicators of efficiency in award procedures
finalized by contracts/framework agreement in 2017 available here (No English version available) issued by the
Romanian agency for public procurement: nap.gov.ro/web/wp-content/uploads/2018/06/Indicatorii-de-
monitorizare-a-eficienței-procedurilor-de-achiziție-publică-finalizate-prin-contract-sau-acord-cadru-în-2017.pdf
(Last accessed on 17 August 2018).

Page 14 of 31
cancelling such award procedures when the conditions required by article 104 were not in fact
met. For instance, the Romanian High Court of Justice mentioned transparency principle in
the decision no. 2578 as of May 24, 2012. Thus, the court held that an extension of a contract
term with seventeen addendums is a substantial amendment of a public procurement contract.
In Poland, in the case of the negotiated procedure without publication and the single-
source procurement, immediately after the selection of the most advantageous tender, the Commented [c9]: De verificat cum este in Romania.

contracting authority may place in the Public Procurement Bulletin or dispatch to the
Publications Office of the European Union, respectively, the notice of intention to conclude a
contract containing, as a minimum: 1) name (business name) and address of the contracting Commented [c10]: De

authority, 2) specification of the subject-matter of the contract as well as the size or scope of
the contract; 3) justification for selecting the negotiated procedure without publication/single-
source procurement; 4) name (business name) or name and surname as well as the address of
the economic operator whose tender was selected.

Below thresholds public procurement. Recent changes involving the award of below
thresholds50 public procurement contracts aim at bringing more flexibility introducing a clear
duty for the contracting authorities to use the public procurement electronic system (also
called SICAP) or their own website to ensure proper advertisement51. Although this is not a
novelty, article 43, as recently amended52, of the methodological norms expressly provides
now this duty. These modifications are definitely a reflection of article 137 “Low-value
contracts” from EU Regulation 1268/201253.
For contracts with lower thresholds, a contracting authority can directly buy without
using the electronic catalogue or prior notice published on their website. Specifically,
contracting authorities can ask only three offers when the estimated value is lower than
approx. EUR 20,000 for products and services contracts, respectively approx. EUR 60,000 for
works.

50
For details regarding below thresholds contracts see: Dacian C. Dragos, “Sub-dimensional public procurement
in the European Union” in Christopher Bovis, “Research handbook on EU Public Procurement Law”, Edward
Elgar Publishing, Chelthenham, UK, Northampton, MA, USA, 2016.
51
See for details the explanations provided by the Romanian Public Procurement Authority at case no.713 at
“Library of cases”, as a tool for helping Romanian contracting authorities recently introduced.
52
Article 43 has been recently amended by Government Decision no. 419/2018 published in the Romanian
Official Gazette no. 496 as of June 18, 2018.
53
Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of
Regulation (EU, Euratom) no. 966/2012 of the European Parliament and of the Council on the financial rules
applicable to the general budget of the Union is available here: https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32012R1268 (Last accessed on 11 August 2018).

Page 15 of 31
Furthermore, in case the estimated value is lower than approx. EUR 15,000, a
Romanian contracting authority can buy directly based on a sole bid while in case of an
estimated value of EUR 1000, the contracting authority can buy directly from any economic
operator without requesting any offer. While it is definitely understandable the need to reduce
the administrative burden for non-substantial contracts, in the actual political context,
contracting authorities should firstly follow a through market research and secondly should
comply with transparency principle at least by a proper advertising that could be of help for
SME.
However, such simplification occurs at the expense of the transparency principle and
without taking in account at the least the following issues:
(i) there are no standard of costs for products, services, or works in place
increasing the risk of corruption and there is
(ii) low administrative capacity at the level of the contracting authorities that
are not properly informed about the market value of different product,
services or works they need.
This is the reason why we consider that National Agency for Public Procurement should
also issue a guide and offer some general guidelines for the proper steps to conclude such
contracts. These guidelines should also provide some steps to avoid the risk of corruption or
collusion especially since there is no legal obligation regulated by public procurement laws to
follow the requirement for the prevention of conflict of interest for this category. For this
reason, in many cases, except for the internal guidelines of the contracting authority, a
statement for avoiding conflict of interest is not issued by the contracting authority’s
evaluation committee in case of this public procurement.

2.3 Evaluation stage in Romania and Poland

Exclusion grounds involving bearing shares in Romania. For the purpose of this article, we
will refer only to the issues with relevance for the transparency principle. Although most of
the times, transparency principle means that all the participants in a certain tender must be
able to know the applicable rules in advance and must have the certainty that these rules apply
to everybody in the same way54, transparency principle could also be construed from a

54
See Dacian.C. Dragos and Roxana Vornicu, “Public procurement below thresholds in the European Union”
published in the European Public Procurement Law Review nr. 3/2015, Legal Publisher Lexxion, Berlin,
Germany, p. 197

Page 16 of 31
broader perspective including also the real identity of the bidder. In fact, knowing the real
identity is also necessary to prevent cases of conflict of interest.
In particular, under article 60 of the RPPL, the individuals or legal entities directly
involved in the process of verification/evaluation of applications/tenders are not allowed to
hold social parts, shares, shares of the subscribed capital on one of the tenderers /candidates,
supporting third parties or subcontractors or of the persons that are part of the board of
directors/management or supervisory body of one the tenderers/candidates, third supporting
parties or subcontractors.
To such end, in Romania several members of the opposition party have initiated in 2017
two separate drafts for amending the public procurement law with the purpose of debarment
from an award procedure any economic operator holding bearing shares. Shortly, this
initiative was due to some suspicions that some companies issuing bearing shares in fact
connected with an important political party have participated in the public procurement
procedures.
The first draft initiated envisaged the amendment of article 7 from the Romanian public
procurement law55. Shortly, any company holding bearing shares would have been prohibited
from participating in any public procurement procedure, including below thresholds contracts.
Thus, in case of bearing shares, the title passes upon delivery and the ownership in a legal
person belongs to the person who possesses the bearer share certificate. Therefore, the
ownership can change at any time and making very difficult to verify the actual owners.
Finally, this also can make very difficult to track any potential conflict of interest.
Furthermore, the opposition party submitted a second draft as to allow the contracting
authorities to request to the economic operators to present the final beneficiary of the bearer
shares56. Moreover, the contracting authority had the obligation to debar from the award
procedures any company issuing bearer shares in case such company failed to comply with
the obligation to indicate the final beneficiary57. It is interesting to note that some experts
also opinioned that exclusion grounds (irrespective of the fact it includes or not holder of

55
The opposition party registered the draft under no. B405 as of 05.09.2017 and it is available here in Romanian
(no English version is available): https://www.senat.ro/legis/PDF/2017/17L469FG.pdf (Last accessed on 13
August 2018).
56
The draft for amending the Law 98/2016 has been registered under no. B429 as of September 12, 2017 with
the purpose of amending article 53 of the RPPL. The draft is available here (Romanian version only):
https://www.senat.ro/legis/PDF/2017/17L486FG.pdf (Last accessed on 13 August 2018).
57
See the Minutes of the meeting of the Commission Stakeholder Expert Group on Public Procurement,
Brussels, 18 May 2017 available here
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=33906&no=2 (Last
accessed on 12 August 2018).

Page 17 of 31
bearer shares) should apply not only on legal persons, but also on natural persons that are the
real owners of these legal persons58.
It is interesting to note that both projects have also received a negative endorsement from
the Romanian Legislative Council.
For the time being, both drafts suggesting the elimination of bearing shares have been
rejected by first chamber of the Romanian Parliament.

2.4 Ex-post procurement transparency in Romania and Poland

The rule of thumb is that the contracting authority has the duty to inform the economic
operators involved in the awarding procedure on the decisions regarding the result of the
selection by the issuance of a communication report in this respect. Therefore, this result
could refer to either the winning bidder or the cancellation of the award procedure.
For transparency purposes, Romanian contracting authorities must inform all the
economic operators in a timely manner, but not later than three days of the issuance of such
communication. This term has been recently slightly shortened from five to three days59 to
improve the efficiency of the Romanian public procurement system.
As a rule, the contracting authorities publishes this communication in the public
procurement electronic system. The communication through which this information is
transmitted shall be sent also by fax or by electronic means. Furthermore, the winning bidder
is publicly made available in the award notice published on-line.
To ensure an effective access to legal remedies and increase credibility in their decisions,
the contracting authorities must include in this communication solid grounds including the
reasoning for choosing the winner bidder. From the statics published by the Council, it seems
that this document it is most often challenged by the all the economic operators60.
From the transparency principle’s perspective, we can say that in general, contracting
authorities tend to comply with all the mandatory elements required by article 215 of

58
See the Minutes of the meeting of the Commission Stakeholder Expert Group on Public Procurement,
Brussels, 18 May 2017 that is available here:
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=33906&no=2 (Last
accessed on 16 August 2018).
59
This amendment has been recently introduced by article 19 of the Government Emergency Ordinance no.
45/2018 for the amendments and supplements to certain laws in the field of public procurement.
60
See “The guide for good practices. Case-law in public procurement” issued by the Romanian National Council
for Solving Complaints available here (Romanian version only)
:http://portal.cnsc.ro/ghiddebunepractici.pdf?pdfa1=ZmFsc2U=&filename=Z2hpZGRlYnVuZXByYWN0aWNp
LnBkZg==&action=aW5saW5l (Last accessed on 15 August 2018).

Page 18 of 31
Romanian public procurement law61 for filling in the report and in most cases, a detailed
justification is offered in the final report of award procedure.
However, the final report is available in the public procurement electronic system only to
the participating bidders.
Any other interested third party must submit a request for obtaining the final report based
on freedom of access to public information law no. 544/2001 (“FOIA”)62. By contract, any
third party can obtain such report within ten or thirty days since a contracting authority
receives, such request, depending on the number of the documents to be produced.
Access to public procurement file. As a rule, for each award procedure the contracting
authority must prepare the public procurement file63. The public procurement file is a public
document and includes at least the following documents: contracting strategy, notices, award
documentation, confidentiality agreement, ESPD, offers, clarifications requests, evaluation
reports, the final report, the public procurement contract, the final report, award notice, and
challenges, if the case.
As a rule, the public procurement file becomes public only after the award procedure is
finalized. As an exception, a contracting authority can refuse access to documents were
disclosure would undermine the protection of commercial interests of a legal person including
intellectual property.
For the bidders, the public procurement file becomes public since the contracting
authority issues the final report of the award procedure64. In practice, in some particular cases
and contrary to the principle of good administration, some contracting authorities abuse of
their right to provide access to such file by not allowing any economic operators to make
copies of such documents even if no commercial interest/intellectual property right of third
parties are involved. The bidders have access to the file within one working day since a
request has been filled in.

61
See the court decision no. 3604/2018 issued by the Appeal Court of Alba-Iulia on June 20, 2018 on
sanctioning a contracting authority for cancelling an award procedure without serious grounds, more specifically
since several economic operators decided to challenge the award decision (in other words, the number of
challenges triggered the cancellation of the award procedure):
http://www.rolii.ro/hotarari/5b4967ade490094c1d00006f
62
The rate of success before court following the administrative appeal is 28% as indicated by Dacian. C. Dragoș,
Bogdana Neamțu, Raluca Suciu, “The dynamic of administrative appeals and other ADR tools in Romania” p.
435 published in Dacian.C. Dragos, Bogdana Neamțu, “Alternative Dispute Resolution in European
Administrative Law,” Springer, 2014.
63
See article 217 (4) of the RPPL. No English version is available.
64
See article 217 (5) of the RPPL. No English version is available.

Page 19 of 31
For any other third parties, the public procurement file becomes public when the award
has been finalized irrespective if this refers to cancellation of the award procedure or the
conclusion of the public procurement contract with the winning bidder65.
It is worth mentioning that the refusal to disclose documents from the public procurement
file can be challenged to Romanian administrative courts, with relevant case law sanctioning
such refusal by compensatory damages66.
Public procurement contracts registrar. Unlike other EU countries, including Poland
(who intends to create one), Bulgaria or Czech Republic, Romania does not hold a public
contract registry67.
A public contract registry is an online repository that aims at keeping track of all
procurements concluded by the state and making this information available online, thereby
providing a basis for monitoring the way in which public money is spent68. Establishing
contract registries can be a powerful tool to highlight the way in which taxpayers’ money is
used. Contract registries should provide open, downloadable, complete, up-to date and
machine-readable information on contracts in order to maximize the usefulness of the
information contained therein. Apart from the importance of publishing the full text of the
contract, data such as price, signature date, names of contracting parties and description
of goods and services should be disclosed in a user-friendly format and must be easily
searchable. Setting smart searching functionalities is crucial in order to quickly identify and
access contracts that have similar features. For instance, it should be accessible to isolate
contracts concluded by the same contracting authority or awarded to the same supplier.

However, recently the opposing party has initiated a proposal to amend FOIA69 in order to
impose the contacting authorities the obligation to publish ex officio all the public
procurements contracts. Unfortunately, the Romanian Senate rejected the proposal on May 16,
201870.

65
For the access to the public procurement file in EU institutions, see Dr. Albert Sánchez Graells,
„Transparency in Procurement by the EU institutions” available
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3020168 (Accessed on 13 August 2018).
66
See the Cluj Court of Appeal no. 2270 as of September 30, 2009 available on www.idrept.ro (Accessed on
January 19, 2018).
67
For details at EU level see: http://ec.europa.eu/regional_policy/sources/good_practices/GP_fiche_23.pdf (Last
accessed on 13 August 2018).
68
For another discussion on the public contracts registers see also Dr. Albert Sánchez Graells, „Why are public
contracts registers probelmatic” available on http://www.howtocrackanut.com/blog/2015/09/why-are-public-
contracts-registers.html (Accessed on 12 August 2018).
69
Under the FOIA, such public procurement contracts are now available only upon request.
70
For details see: https://senat.ro/Legis/PDF/2018/18L214EM.pdf (Accessed on August 13, 2018).

Page 20 of 31
Publicity of the public procurement contracts addendums. Firstly, the National
Strategy Anti-Corruption71 includes as specific objective 3.6 “The increase of integrity, the
decrease of vulnerabilities and the corruption risk in public procurement.” In particular, the
objective 3.6.5 of the Appendix 2 to the Strategy mentions as an important risk for public
procurement sector the issue of the absence in the electronic system of all addendums to the
public procurement contracts.
It is regretful that all though the Strategy includes such an importance risk factor, recent
amendments have eliminated the mandatory publication of the addendums. Thus, the
modifications are not made publicly available since the article 164 of the Methodological
norms has been amended as to not impose the publication of such amendments in the
electronic system.
However, even the publication of such addendums it is currently not mandatory, as a good
practice contracting authorities can still to choose to publish such addendums.
Last but least, contracting authority still has the obligation to publish in the award
documentation the formula based on which contract shall be amended during the its
performance.

2.5 Transparency in procurement litigations in Romania and Poland

In Romania, any aggrieved party challenging a deed in public procurement cases can
lodge a complaint either to administrative courts (tribunal in first instance and Court of
Appeal in second instance) or to the National Council for Solving Legal Disputes72
(“Council”), seen in theory at least as independent from other structures in what concerns its
decision.
Efficiency of the Council. In 2017, the Council dealt with 4,782 complaints73. In 2017
the number of complaints increased with 59,13%. This is due to an important increase of the
award procedures. A percentage of 20,53% referred to ESI funds. Having in view this
percentage and the fact that Council considers such complains within 15 days on average it is
quite surprising the fact that in the substantiation note published in an unsigned form on the
71
Adopted by the Government Decision no. 583/2016 published in the Official Gazette no. 644 as of August 23,
2016.
72
See for a brief description of the Council, Dacian. C. Dragoș, Bogdana Neamțu, Raluca Suciu, “The dynamic
of administrative appeals and other ADR tools in Romania” p. 443 published in Dacian.C. Dragos, Bogdana
Neamțu, “Alternative Dispute Resolution in European Administrative Law,” Springer, 2014.
73
See the Council Report for 2017, p. 12 available here: http://www.cnsc.ro/wp-
content/uploads/2018/raport/Raport.2017.RO.pdf (no English version is available although the Council accessed
several ESI funds).

Page 21 of 31
website of the Government, the changes were justified, as always, by the need to reduce the
term for the resolution of complaints for the purpose of unblocking major investment projects
with ESI funds74. In 2017 only 33,57% of the total number of complaints were admitted by
the Council.
However, it is expected that at least for the half of 2018 should appear a decrease75 on the
total number of the complaints since the Romanian Government decided to impose recently
by E.G.O. no. 45/2018 the payment of a deposit of 2% of the estimated or established value of
the contract depending of the value thresholds, without exceeding a determined fixed amount.
This deposit aims at protecting contracting authorities of an inappropriate behavior of the
bidders. As a rule, this deposit shall be reimbursed when the final decision is issued.
The proceeding in front of the Council is quite fast and one may ask in some cases if this
is not contrary to finding the truth and in fact ineffective. Moreover, the recent amendment
introduced this year indicate that time limit set for the Council to solve a complaint has been
reduces from 20 working days to 15 calendar days.
The complaint’s publicity. According to the article 16 par. (2) of the Law 101/2016 on
remedies76, the contracting authority has the obligation to publish in the electronic public
procurement system the challenge brought by various bidders. However, the contracting
authority has the obligation not to disclose the information from the complaint marked by the
bidder as being confidential, classified or protected by intellectual property.
Confidentiality of the bids in front of the Council/court. Firstly, mentioned should be
made that, as a rule the economic operators have the obligation to motivate the reasoning77
allowing them to declare confidential some elements of the offer. Yet, in practice, the bidders
abusively declare confidential both financial or technical offer because of the economic or
technical information included in these documents. Thus, some bidders can even hide some
errors in their own bids claiming the presumption of non-disclosure resulting from a mere
self-statement.

74
See Radu Damaschin, The Award of Administrative Contracts – New Benchmarks for Review Procedures
https://www.nndkp.ro/articles/the-award-of-administrative-contracts/ (Accessed on 14 August 2018).
75
In 2016 there were only 3005 complaints registered in front of the Council according to the same Report for
2017.
76
Law 101/2016 on remedies and review procedures in relation to the award of public procurement
contracts, sectorial contracts and of contracts for the concession of works and services, and for the
organization and functioning of the National Council for Solving Complaints was published in the Officia
Gazzette no. 393 as of May 23, 2016.
77
Article 123 of the Methdological norms.

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For this reasons, Council expressly requires to clearly prove by any means that the
document are in fact protected by commercial secret or intellectual property78. However, the
remedies law fails to mention the grounds for such non-disclosure. Thus, a bidder must rely
solely on intellectual property regulations to clearly provide reasoned grounds referring to
manner in which such disclosure could influence his commercial activity. Therefore, a mere
statement or just a stamp on the bid documents mentioning “confidential” cannot be deemed
sufficient to limit the access of other aggrieved bidders. Yet, it seems that the Romanian case
law tends to reject such grounds when bid seems to be abnormally low.
Romanian case law concerning the protection of bids in public procurement is far from
being unitary. In some cases, Romanian courts tend to disclose bids excessively declared
confidential79 while in other cases seem to protect the bidders acting in good faith80.
Publication of the Council’s decision. In contrast with the decision issued by the
Romanian courts, the decisions of the Council are publicly available for consultation.

However, it is not common practice to publish VEAT notices.

3.3. Ex-post procurement transparency

Pursuant to Article 92(1) of the PPL, the contracting authority shall immediately inform all
the economic operators about: 1) the selection of the best tender, providing the company name
or the first and last name, registered office or place of residence and address, where such an
address is the place of business of the economic operator whose tender has been selected, and
the company names or first and last names, registered office or place of residence and
addresses, where such addresses are places of business of the economic operators who have
submitted tenders, as well as scores assigned to the tenders under each contract award
criterion, and the total scores, 2) excluded economic operators (as the case may be, this should
contain explanation of the reasons for which evidence presented by the economic operator

78
See article 19 of the Law 101/2016.
79
See Pitesti Court of Appeal decision no.3191/R-Cont as of October 21, 2013.
80
Brasov Court of Appeal decision no. 40/R/2017 as of January 17, 2017 published in Dumitru Daniel -Serban,
“Commented case-law in public procurement ”, vol. VI, Hamangiu Publishing, p.70

Page 23 of 31
was deemed insufficient by the contracting authority), 3) economic operators whose tenders
have been rejected, reasons for the rejection, and – as the case may be – lack of equivalence to
compliance with the performance or functionality requirements, 4) economic operators who
have submitted tenders not subject to rejection but have not been invited to the next
negotiation or dialogue stage, 5) admitting to a dynamic purchasing system, 6) no dynamic
purchasing system set up, 7) cancellation of the procedure – providing factual and legal
justification.

The PPL does not specify how detailed justification should be. In practice, such justification
does not contain specific information, but rather overall/per criterion points only.

The award decision, along with the factual and legal justification, is made available on the
contracting authority's website, unless its disclosure would be contrary to important public
interest. This means that third parties usually have access to the award decision.

It results from the above that, as far as negotiations or the competitive dialogue are concerned,
the award decision does not have to document the progress in the negotiations or specify the
final conditions of the contract. In practice, negotiation documents, such as records of
negotiations, can be obtained by other tenderers from the contracting authority (e.g. for the
purpose of appeals). In theory, these documents are also accessible to third parties based on
the Public Information Act. It must be recalled, however, that without the other party’s
consent, the contracting authority may not disclose any technical or business information
connected with the negotiations or the dialogue. In practice, during negotiations tenderers take
care that protocols of negotiations do not contain any confidential information or that all such
contents are blanked out which means that records of negotiations that are disclosed to other
tenderers do not reveal such information either.

As mentioned above, tenders are made available to all interested parties from the moment of
their opening. The access to tender information must include the tender’s price (including unit
prices), since pursuant to the PPL, economic operators are not allowed to stipulate in their
tenders that price shall not be disclosed.

Following the award decision, third parties are entitled to access the tenders’ contents in their
entirety. Article 96(3) of the PPL clearly provides that the records of public contract

Page 24 of 31
procedures are public. Tenders are one of the annexes to the records. Third parties may apply
to receive records of the public contract based on the Public Information Act.

Disclosure rules applicable in the case of public contracts are different than those envisaged
with respect to tenders. As mentioned above, public contracts are made accessible pursuant to
the rules laid down in the Public Information Act. This means that any person, including both
other tenderers and third parties, may request the contracting authorities to make the contents
of public contracts available. In theory, contracting authorities may refuse to disclose parts of
such contracts on the grounds of a business secret.

It must be recalled that the business secret means any technical, technological, organizational
or other information of economic value concerning the given entity which is not disclosed to
the public.

It is submitted that business secret includes but is not limited to: 1) detailed description of the
method of calculation of the tender price, in particular, indicating the methodology of its
calculation adopted by the economic operator, stating the company's competitiveness on a
given market; 2) illustration of the organization of the economic operator's personnel; 3) list
of services, supplies or works showing the economic operator's activity on the market at a
given time, the scope of its business and business contacts, and 4) information on third parties
providing access to the potential, in particular data allowing their identification, enabling
tracing the economic operator's business contacts, which undoubtedly contributes to the
company's business strategy.81

Any information that is regarded business secret shall not be disclosed if – not later than
within the time limit for submission of tenders or requests to participate in a procedure – the
economic operator stipulated that such information shall not be shared and demonstrated that
the reserved information remains a business secret (Article 8(3) of the PPL). However, the
economic operator may not stipulate that the information on the names (company names) and
addresses of economic operators as well as information included in the tenders concerning the
price, time limit for completion of the contract, period of guarantee and terms of payment,
shall not be disclosed (Article 86(4) in connection with Article 8(3) of the PPL).

81
M. Jaworska, 'Commentary to Article 8' in M. Jaworska, D. Grześkowiak-Stojek, J. Jarnicka, A. Matusiak
(eds.), Prawo zamówień publicznych. Komentarz (4th ed. C.H. Beck 2017, electronic version).

Page 25 of 31
Business secrecy constitutes exception from the principle of public access. Consequently the
burden of proof necessary to deactivate the presumption of public access rests on the
economic operator. As a consequence, as held by the National Chamber of Appeal (Krajowa
Izba Odwoławcza), being a body of first instance in review proceedings, the role of the
contracting authority in the course of examining tenders or requests to participate in a
procedure is to determine whether the economic operator has successfully met this
obligation.82

As abovementioned, in such case the economic operator, not later than within the time limit
for submission of tenders or requests to participate in a procedure, must stipulate that the
given information shall not be shared and demonstrate that the reserved information remains a
business secret. Since in the literal wording of the PPL the obligation to "demonstrate" the
above is emphasized, such demonstration means something more than that just an explanation
of the reasons for company secrets. Certainly, no general justification, de facto boiling down
to providing elements of the definition of a legitimate business secret, resulting from Article
11(4) of the Act on Combating Unfair Competition, shall suffice.83

There are some controversies as to whether the contracting authority may ask the economic
operator for explanations if such operator, not later than within the time limit for submission
of tenders or requests to participate in a procedure, stipulated that the given information
should not be shared and demonstrated that it remains a business secret. The National
Chamber of Appeal is of a view that the contracting authority does not have such right (thus,
it should decide, based on provided information, whether or not the given information shall
retain the status of a business secret).84

The contracting authority cannot rely solely on the economic operator's stipulation regarding
the fulfilment of the required conditions, but should independently assess the legitimacy of
the economic operator's business secrecy. It is submitted that the contracting authority should
consider whether the given information – as stipulated by the economic operator – has the

82
See judgment of 22 July 2016, KIO 1073/16.
83
Ibidem.
84
See e.g. judgment dated 5 October 2016, KIO 1684/16; the President of the Public Procurement Office is of
the opposite view.

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economic value so significant for the economic operator that the right to confidentiality
prevails over the principle of open proceedings, thereby limiting the rights of other economic
operators, for protection purposes85.

There is no perception that transparency or any other characteristics of procurement markets


create risks of distortion of competition. To my knowledge, contracting authorities do not
refuse to disclose information with the view to avoiding distortions of competition.86 I am not
aware either of any cooperation of contracting authorities with the Office of Competition and
Consumer Protection aimed at assessing issues of this kind. In this context, it is worth noting
that the Office of Competition and Consumer Protection is very active in the prevention of
cartels in public procurement markets. On average, the Office issues several decisions each
year and carries out another several dozen proceedings in this regard.

If the contracting authority discloses a business secret, the contracting authority's staff may be
held liable under the act on combating of unfair competition dated 16 April 1993. Pursuant to
Article 23(1) of this act, every person who – contrary to his obligation towards the
entrepreneur – discloses to another person or uses in his own economic activity information
which is a business secret, shall be liable to fine, probation or imprisonment up to 2 years,
provided it is to a significant detriment of the entrepreneur.

If, however, the contracting authority refuses to information that was not business secret,
other tenderers may then lodge a complaint with the National Chamber of Appeal. Even if the
Chamber orders the contracting authority to disclose the relevant information, the tender
remains valid. In other words, the only consequence of wrongful stipulation is the disclosure
of the tender. This was confirmed by the Supreme Court.87

85
See judgment of the Supreme Court dated 3 October 2000, I CKN 304/00. See also M. Jaworska,
'Commentary to Article 8' in M. Jaworska, D. Grześkowiak-Stojek, J. Jarnicka, A. Matusiak (eds.), Prawo
zamówień publicznych. Komentarz (4th ed. C.H. Beck 2017, electronic version).
86
Contrary to some views, I am not of the opinion contracting authorities are obliged to refuse to disclose
information to avoid distortions of competition pursuant to Article 55 of Directive 2014/24/EU. Under Article
55(3) thereof, contracting authorities may decide (i.e. do not have to) to withhold certain information referred to
in paragraphs 1 and 2 (e.g. information regarding the characteristics and relative advantages of the tender
selected as well as the name of the successful tenderer or the parties to the framework agreement), regarding the
contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where
the release of such information might prejudice fair competition between economic operators.
87
See resolution (uchwała) of the Supreme Court of 21 October 2005, III CZP 74/05. This resolution was
generally accepted in the literature and case-law. However, it was criticized by, among others, J. Pieróg who
maintains that in such case, the tender should be rejected; J. Pieróg, Prawo zamówień publicznych. Komentarz
(14th ed. C.H. Beck 2017), pp. 92-93.

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National law does not impose obligations on contracting authorities to publish any
information on contract amendments wider than that required under EU Directive. However,
as mentioned in the introduction, a publicly available registry of public contracts 88 is to be
created and maintained by contracting authorities. It would contain information on any
modifications to public contracts.

In general, access to information during the contract execution is very limited. Third
parties/other tenderers have access to information on the bills/orders/order confirmations etc.
during the contract execution only based on general rules of the Public Information Act (see
above). None of the documents or information described above are available on the web.

3.4. Transparency in procurement litigation

Procurement litigation in Poland is divided into two instances. The National Chamber of
Appeal is a body of first instance, independent of the contracting authority and responsible for
review procedures in the meaning of Article 2 of Directive 2007/66/EC of the European
Parliament and of the Council of 11 December 2007 amending Council Directives
89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures
concerning the award of public contracts.

In the Forposta case the Court of Justice of the European Union confirmed that the National
Chamber of Appeal is the court in the meaning of Article 267 of the Treaty of the Functioning
of the European Union.89 Proceedings before the National Chamber of Appeal are regulated
by Articles 179-198 of the PPL and by the Ordinance of the Prime Minister of 22 March 2010
concerning the Rules of Proceedings when Recognizing Appeals90 (the "Procedural
Ordinance").

88
With few exceptions, only such as contracts concluded under Article 346 of the Treaty on the functioning of
the European Union, i.e. contracts necessary for the protection of the essential interests of State security.
89
Case C-465/11, Forposta SA and ABC Direct Contact sp. z o.o. v Poczta Polska SA, ECLI:EU:C:2012:801.
The Court held as follows: "[the Chamber] is a body established by the law on public procurement, has been
granted exclusive jurisdiction to hear and determine, at first instance, disputes between economic operators and
competent authorities, and whose operation is governed by Articles 172 to 198 of that law, does constitute a
court or tribunal, within the meaning of 267 TFEU, in the exercise of its jurisdiction in relation to those
provisions, as is the case in the main proceedings. The fact that that the body may be invested, by virtue of other
provisions, with an advisory role, is devoid of consequence in that regard."
90
Journal of Laws of 2010, no. 48, item 280.

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Each year approx. 3000 appeals are lodged to the Chamber. Proceedings before the National
Chamber of Appeal are very fast, i.e. appeals are examined within 14 days (on average) from
the date of their submission to the Chairman of the National Chamber of Appeal. The parties
and participants of appeal proceedings before the National Chamber of Appeal may complain
to the district courts against the National Chamber of Appeal’s ruling (second instance).
Unless the provisions of the PPL provide otherwise, in the proceedings pending as a result of
a lodged complaint, the provisions of the Code on Civil Procedure of 17 November 1964 on
the appeal apply accordingly. In general, the court’s judgement ends the procedure in the case.
However, the President of the Public Procurement Office is entitled to submit a cassation
complaint to the Supreme Court (in practice, he rarely does so – 2/3 times per year).

As regards the proceedings before the National Chamber of Appeal, paragraph 8 of the
Procedural Ordinance provides that the appeal, along with attachments and a copy of the
documentation of the public procurement procedure, as well as other letters filed in the case
and letters forwarded by the National Chamber of Appeal in connection with the appeal
lodged, constitute a file of appeal. In the course of the appeal proceedings the files of appeal
shall be made available by the President of the National Chamber of Appeal at the National
Chamber of Appeal's headquarters to the parties and participants of the appeal proceedings, at
their request, within the time agreed with the chairman of the adjudication panel. However,
information that is protected under separate provisions other than classified information
within the meaning of the regulations on the protection of classified information, such as e.g.
business secrets, shall not be disclosed.

This means that if the contracting authority does not disclose the given information and the
economic operator does not appeal against it, then the National Chamber of Appeal is not
entitled to disclose information during the appeal proceedings. In this context, it should be
noted that it is common practice for economic operators to stipulate that a wide range of
information contained in their tenders constitutes a business secret and therefore should not be
disclosed, only to prevent other economic operators from getting acquainted with their
tenders. In such a case, economic operators should apply to the contracting authority for
disclosure of information that does not constitute business secret, and if the contracting
authority refuses to do so, economic operators have a right to appeal against that.

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One may theoretically consider the situation when the contracting authority selects the most
advantageous tender before the economic operator has a chance to get acquainted with an
entire tender of its competitor. In such case, the selection of the most advantageous tender is
understood as the refusal to disclose information. In practice, economic operators – to be on
the safe side – lodge appeals "blindly".91 At the same time it is important that economic
operators contain in such appeals allegations against the refusal to disclose information. If
they do not contain such allegations, the National Chamber of Appeal will not be able to
adjudicate ex officio on the refusal to disclose information. If, however, they lodge appeals
against the refusal to disclose information, although there is no fixed practice in that respect,
it seems that the National Chamber of Appeal should, in the first turn, deal with the issue of
the disclosure.92

Interestingly, access to documents is in practice wider in the second instance as there are no
relevant provisions protecting business secrets in the Code on Civil Procedure of 17
November 1964. Consequently, entities that took part in the proceedings before the National
Chamber of Appeal, and were refused to get acquainted with documents at that stage, are able
to get access to e.g. an entire tender before the court.

The contracting authorities are obliged to prepare an annual report on the conducted contract
award procedures and dispatch the report to the President of the Public Procurement Office by
1 March of each year following the year to which the report refers (Article 98 of the PPL).

The scope of the required information is specified in the Ordinance of the Minister of the
Development and Finance regarding Information Contained in the Annual Report about the
Awarded Contracts, the Report's Form and the Manner of its Dispatching of 15 December
2016.93

The report is to be very detailed. Contracting authorities have to specify, among other things,
the number of public contract proceedings conducted, the number of public contract awards,
and their values. In the case of public contracts the value of which is equal to or exceeds EU

91
Obviously, this may be difficult, or even impossible, in some cases.
92
See, to some extent, the judgment of the Chamber of 22 July 2016, KIO 1073/16 and of 15 May 2015, KIO
907/15.
93
Journal of Laws of 2016, item 2038.

Page 30 of 31
thresholds, contracting authorities have to list, among other things, the number of the award
notices in the Official Journal of the European Union, the type of the public contract, the type
of the procedure (along with the justification), the country of origin of the awarded economic
operator, the number of tenders submitted and rejected or the number of subcontractors.

Based on contracting authorities' reports the President of the Public Procurement Office
prepares annually its own report on the functioning of the system of public contracts in
Poland.94

3. Final considerations
The legal doctrine argues that: “in the long run transparency seems to be the better
course. It forces officials to act with far less corruption, and it opens the procurement process
to mare stakeholders, which ultimately makes the procurement system much stronger. (…) it
seems that the transparency should always be the first choice, as it enhances both competition
and integrity95.” Other authors are less inclined to praise transparency in public procurement,
due to its effect of keeping the serious bidders out of the public markets96.
However, it seems at least doubtful if the current amendments in both countries increase
transparency in public procurement. On the contrary, there is a strong opposition to any
measure increasing transparency in Romania when referring to debarment of the economic
operators with bearer shares, public contract register or below thresholds contracts. Similarly,
in Poland there is a. initiative for repealing the law of FOIA.

94
Such reports are available here (Polish language version only) https://www.uzp.gov.pl/baza-wiedzy/analizy-
systemowe/sprawozdania-o-funkcjonowaniu-systemu-zamowien-publicznych (Last accessed on 17.02.2018)
95
See Gabriella M. Racca, Christopher R. Yukins, “Integrity and Efficiency in sustainable public contracts.
Balancing corruption concerns in public procurement internationally”, Bruylant, 2014, Bruxelles.
96
Graells, Kirsi

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